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Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Background

The Eighteenth Amendment to the Constitution had ushered in a period known as Prohibition, during which the manufacture, distribution, and sale of alcoholic beverages was illegal. Passage of the Eighteenth Amendment in 1919 was the crowning achievement of the temperance movement, but it soon proved highly unpopular. Crime rates soared under Prohibition as gangsters, such as Chicago's Al Capone, became rich from a profitable, often violent black market for alcohol. The federal government was incapable of stemming the tide: enforcement of the Volstead Act proved to be a nearly impossible task and corruption was rife among law enforcement agencies.[1] In 1932, wealthy industrialist John D. Rockefeller, Jr. stated in a letter:

When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.[2]

As more and more Americans opposed the Eighteenth Amendment, a political movement grew for its repeal. However, repeal was complicated by grassrootspolitics. Although the U.S. Constitution provides two methods for ratifying constitutional amendments, only one method had been used up until that time; and that was for ratification by the state legislatures of three-fourths of the states. However, the wisdom of the day was that the lawmakers of many states were either beholden to or simply fearful of the temperance lobby. For that reason, when Congress formally proposed the repeal of Prohibition on February 20, 1933 (with the requisite two-thirds having voted in favor in each house; 63 to 21 in the United States Senate and 289 to 121 in the United States House of Representatives), they chose the other ratification method established by Article V, that being via state conventions. The Twenty-first Amendment is the only constitutional amendment ratified by state conventions rather than by the state legislatures.

Proposal and ratification

The Congress proposed the Twenty-first Amendment on February 20, 1933.[3]

The proposed amendment was adopted on December 5, 1933. It is the only amendment to have been ratified by state ratifying conventions, specially selected for the purpose.[4] All other amendments have been ratified by state legislatures. It is also the only amendment that was approved for the explicit purpose of repealing a previously existing amendment to the Constitution. The Twenty-first Amendment ending national prohibition became officially effective on December 15, though people started drinking openly before that date.[5]

The various responses of the 48 states is as follows:

The following states ratified the amendment:

Michigan (April 10, 1933)

Wisconsin (April 25, 1933)

Rhode Island (May 8, 1933)

Wyoming (May 25, 1933)

New Jersey (June 1, 1933)

Delaware (June 24, 1933)

Indiana (June 26, 1933)

Massachusetts (June 14, 1933)

New York (June 27, 1933)

Illinois (July 10, 1933)

Iowa (July 10, 1933)

Connecticut (July 11, 1933)

New Hampshire (July 11, 1933)

California (July 24, 1933)

West Virginia (July 25, 1933)

Arkansas (August 1, 1933)

Oregon (August 7, 1933)

Alabama (August 8, 1933)

Tennessee (August 11, 1933)

Missouri (August 29, 1933)

Arizona (September 5, 1933)

Nevada (September 5, 1933)

Vermont (September 23, 1933)

Colorado (September 26, 1933)

Washington (October 3, 1933)

Minnesota (October 10, 1933)

Idaho (October 17, 1933)

Maryland (October 18, 1933)

Virginia (October 25, 1933)

New Mexico (November 2, 1933)

Florida (November 14, 1933)

Texas (November 24, 1933)

Kentucky (November 27, 1933)

Ohio (December 5, 1933)

Pennsylvania (December 5, 1933)

Utah (December 5, 1933)

Ratification was completed on December 5, 1933.

The amendment was subsequently ratified by conventions in the following states:

Maine (December 6, 1933)

Montana (August 6, 1934)

The amendment was rejected by the following state:

South Carolina (December 4, 1933)

Voters in the following state rejected holding a convention to consider the amendment:

North Carolina (November 7, 1933)

The following states took no action to consider the amendment:

Georgia

Kansas

Louisiana

Mississippi

Nebraska

North Dakota

Oklahoma

South Dakota

Implementation

State and local control

The second section bans the importation of alcohol in violation of state or territorial law. This has been interpreted to give states essentially absolute control over alcoholic beverages, and many U.S. states still remained "dry" (with state prohibition of alcohol) long after its ratification. Mississippi was the last, remaining dry until 1966;[6] Kansas continued to prohibit public bars until 1987.[7] Many states now delegate the authority over alcohol granted to them by this Amendment to their municipalities or counties (or both), which has led to many lawsuits over First Amendment rights when local governments have tried to revoke liquor licenses.

Court rulings

Section 2 has been the source of every Supreme Courtruling directly addressing Twenty-first Amendment issues.

Early rulings suggested that Section 2 enabled states to legislate with exceptionally broad constitutional powers. In State Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936), the Supreme Court recognized that "Prior to the Twenty-first Amendment it would obviously have been unconstitutional"[8] for a state to require a license and fee to import beer anywhere within its borders. First, the Court held that Section 2 abrogated the right to import intoxicating liquors free of a direct burden on interstate commerce, which otherwise would have been unconstitutional under the Commerce Clause before passage of the Twenty-first Amendment.[9] In its second holding, the Court rejected an equal protection claim because "A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[10] Over time, the Court has significantly curtailed this initial interpretation.

In Craig v. Boren (1976), the Supreme Court found that analysis under the Equal Protection Clause of the Fourteenth Amendment had not been affected by the passage of the Twenty-first Amendment. Although the Court did not specify whether the Twenty-first Amendment could provide an exception to any other constitutional protections outside of the Commerce Clause, it acknowledged "the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful."[11] Likewise, it has been held that Section 2 of the Twenty-first Amendment does not affect the Supremacy Clause[12] or the Establishment Clause.[13] However, the Craig v. Boren Court did distinguish two characteristics of state laws permitted by the Amendment, which otherwise might have run afoul of the Constitution. The constitutional issues in each centered or touched upon:(1) "importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear;"[14] and (2) "purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment." [15] As to the Dormant Commerce Clause in particular, the Court clarified that, while not a pro tanto repeal, the Twenty-First Amendment nonetheless "primarily created an exception to the normal operation of the Commerce Clause."[16]

In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held states cannot use the Twenty-first Amendment to abridge freedom of speech protections under the First Amendment.[23]Rhode Island imposed a law that prohibited advertisements that disclosed the retail prices of alcoholic beverages sold to the public. In declaring the law unconstitutional, the Court reiterated that "although the Twenty-first Amendment limits the effect of the Dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, the Amendment does not license the States to ignore their obligations under other provisions of the Constitution."[24]

Most recently, however, Granholm v. Heald (2005) held that the Twenty-first Amendment does not overrule the Dormant Commerce Clause with respect to alcohol sales, and therefore states must treat in-state and out-of-state wineries equally. The Court criticized its earliest rulings on the issue, (including State Board of Equalization v. Young's Market Co.) and promulgated its most limited interpretation to date:

The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.[25]

In a lengthy dissent, Justice Thomas argued that the plain meaning of Section 2 removed "any doubt regarding its broad scope, the Amendment simplified the language of the Webb-Kenyon Act and made it clear that States could regulate importation destined for in-state delivery free of negative Commerce Clause restraints."[26] In his historical account, Justice Thomas argued the early precedent provided by State Board of Equalization v. Young's Market Co. was indeed correct, and furthered the original intent of the Twenty-first Amendment to provide a constitutional guarantee authorizing state regulation that might conflict with the Dormant Commerce Clause (similar to the Webb–Kenyon Act).

^"Citizen or Subject?". Retrieved August 24, 2010. "An Overlooked Reconsideration of a Fundamental Question in U.S. Constitutional Law." Gilder, Eric and Hagger, Mervyn. British and American Studies (University of the West, Timisoara) 13 (2007): 163-74.

^See 23 U.S.C. § 158(a)(1) (2009) ("The Secretary [of Transportation] shall withhold 10 per centum of the amount required to be apportioned to any State under [23 U.S.C. § 104(b)(1)-(2), (5)-(6)] . . . in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.").

^483 U.S. 203, 205 (1987); accordGriffin v. Sebek, 90 S.D. 692, 703-704 (1976) ("SDCL 35-6-27 provides: 'No licensee under this chapter shall sell or give any low-point beer to any person who is less than eighteen years old or to any person . . . who is intoxicated at the time, or who is known to the seller to be an habitual drunkard.'") (quoting S.D. Codified Laws §§ 35-6-27 & 35-4-78(2) (1975)) (Dunn, C.J., dissenting), overruled on other grounds, Walz v. Hudson, 327 N.W.2d 120 (S.D. 1982), superseded by statute, S.D. Codified Laws § 35-4-78 (2009).

^483 U.S. 203, 212 (1987) ("[R]egulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers reserved to the States by the Twenty-first Amendment. Since States possess this constitutional power, Congress cannot condition a federal grant in a manner that abridges this right. The Amendment, itself, strikes the proper balance between federal and state authority.") (Brennan, J., dissenting) (alteration added) (citation omitted)

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